Commonwealth v. Townsend
| Decision Date | 09 January 1968 |
| Citation | 428 Pa. 281,237 A.2d 192 |
| Parties | COMMONWEALTH of Pennsylvania v. Frank S. TOWNSEND, Appellant. |
| Court | Pennsylvania Supreme Court |
Lawrence Goldberg, Philadelphia, for appellant.
Arlen Specter, Dist. Atty., Alan J. Davis, Asst. Dist. Atty Chief, Appeals Div., Welsh S. White, Asst. Dist. Atty Philadelphia, for appellee.
Before BELL, C.J., and MUSMANNO, JONES, COHEN, EAGEN O'BRIEN and ROBERTS, JJ.
Appellant Frank S. Townsend was convicted by a judge sitting without a jury of two offenses under the Uniform Firearms Act, Act of June 24, 1939, P.L. 872, § 628, as amended, 18 P.S. § 4628(d) and (e)--possession of a firearm after a conviction of a crime of violence and possession of a firearm without a license. Concurrent sentences of one and one-half to three years were imposed and these sentences affirmed by an equally divided Superior Court. See Commonwealth v. Townsend, 209 Pa.Super. 406, 228 A.2d 206 (1967). We granted allocatur.
There is no record evidence that Townsend had been convicted of a crime of violence. [1] That conviction must therefore be reversed. See State v. Tully, 198 Wash. 605, 89 P.2d 517 (1939). Townsend also contends that the evidence produced by the Commonwealth is insufficient to sustain his possession without a license conviction. We agree.
The Superior Court dissenters carefully summarized the Commonwealth's evidence (Commonwealth v. Townsend, supra at 407--408, 228 A.2d at 207):
'On March 25, 1965, at approximately 8:45 p.m., police officers William Carlin and Fred Bacino were on duty in a patrol car near the intersection of Allegheny Avenue and Fox Street in Philadelphia. Carlin, the driver, observed a Rambler automobile about one car length in front of them which had stopped to let out one of its occupants, later identified as William A. Miller. As Miller was getting out of the right side of the car, Bacino saw a weapon fall to the ground and said to Carlin, 'That man dropped a gun, lets check them.' Miller picked up the gun and threw it on the back seat of the car. The officers approached on foot--Bacino on the right side and Carlin on the left. Bacino asked Miller, 'What did you throw in the back seat?' Miller did not reply. Bacino looked into the back seat and saw a .32 automatic pistol.
No weapons having been found on appellant's person, the Commonwealth premised its case upon a theory of joint possession. See, e.g., Commonwealth v. Whitman, 199 Pa.Super. 631, 186 A.2d 632 (1962). Two elements are essential to a finding of joint possession: the power of control over the weapon and the intention to exercise this control. See, e.g., Commonwealth v. Thurman, 167 Pa.Super. 642, 76 A.2d 483 (1950). Appellant concedes that the evidence was sufficient to sustain a finding of power of control, but insists that, under the doctrine of Whitman, the Commonwealth has failed to demonstrate any knowledge on his part of the presence of the weapons, an element which is a necessary predicate to a finding of intention to exercise control.
Although the trial judge based his finding of guilt in great measure upon the fact that Townsend was sitting in the front seat (and thus the weapon partially concealed under the front seat would have been between Townsend's legs), there is absolutely no evidence of record indicating where Townsend was sitting. The totality of the Commonwealth's evidence on this point is contained in the following dialogue between the defense attorney and Officer Bacino: [2]
'Q. When you went up to the automobile, isn't it a fact that Townsend was sitting in the middle of the automobile?
A. I cannot recall that.
Q. Giambi was driving, is that correct?
A. Yes.'
The Commonwealth must therefore rely on its contention that mere presence in a vehicle containing two weapons is sufficient to sustain a finding of guilt. [3] To support this contention, it cites Commonwealth v. Whitman, supra; Commonwealth v. Pinckney, 194 Pa.Super. 371, 168 A.2d 922, cert. denied, 368 U.S. 857, 82 S.Ct. 95, 7 L.Ed.2d 54 (1961); Commonwealth v. Hooe, 187 Pa.. super. 330, 144 A.2d 580 (1958); and Commonwealth v. Thurman, supra. Each of these decisions is clearly distinguishable. In Pinckney and Thurman both defendants stated to the arresting officers that they were involved in offenses utilizing the items of which they were found in possession. Such a statement was never made by Townsend. Whitman was convicted of possession of burglary tools and possession of an unlicensed weapon. The crucial distinction between Whitman's conviction and that of Townsend is the very fact upon which the trial judge erroneously relied--Whitman Was sitting in the passenger's seat under which two weapons were found.
Hooe, according to the Commonwealth's brief, is its strongest case. Two narcotics officers observed Hooe and one Heflin, known narcotics users, in an automobile driven by Heflin. The officers were apparently recognized and a chase ensued during which one of the officers observed Hooe reach down and disappear from sight; a moment later a white envelope was ejected from the car window. The envelope contained heroin. Hooe was later apprehended in Alabama. Two distinguishing circumstances are thus present--Hooe's actions which gave rise to the permissible inference that he had ejected the envelope, and his subsequent flight. Not only was Townsend completely cooperative with the arresting officers, but there is not a shred of testimony beyond his mere presence to indicate that he was in any way associated with the weapons found.
In our opinion, Commonwealth v. Clinton, 391 Pa. 212, 137 A.2d 463 (1958) controls. Reversing a conviction for joint possession of burglary tools, we there insisted that, in a prosecution based upon circumstantial evidence, conviction may not be based upon suspicion or conjecture but rather the evidence must be such 'as reasonable and naturally to justify an inference of guilt of the accused * * * and of such volume and quality as to overcome the presumption of innocence * * *.' Id. at 218--219, 137 A.2d at 466. Clinton's conviction was based upon his presence in an automobile containing burglary tools; Townsend's upon his...
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